Case Note & Summary
The appellant, Munna Khan, was convicted by the NDPS Court at Mapusa in Special Criminal Case No.06 of 2013 for offences under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for being found in illegal possession of 3.015 kgs of charas, a commercial quantity, on 17.10.2012 at Tisk-Karapur, Sanquelim-Goa. He was sentenced to rigorous imprisonment for ten years and a fine of ₹1,00,000, with default imprisonment of one year. The appellant appealed against the conviction. The primary legal issue was whether the mandatory provisions of Section 50 of the NDPS Act were complied with. The appellant's counsel argued that the accused was not searched before a Gazetted Officer or Magistrate and was not informed of his right to such a search in Hindi, a language he understood. The prosecution examined six witnesses, but the court found that there was no evidence that the accused was apprised of his right under Section 50. The court relied on the Supreme Court decision in Arif Khan @ Agha Khan vs. The State Of Uttarakhand and other decisions of the Bombay High Court. The court held that non-compliance with Section 50 is fatal to the prosecution case and set aside the conviction and sentence, acquitting the appellant.
Headnote
A) Criminal Law - Narcotic Drugs - Section 50 NDPS Act - Mandatory Compliance - The court considered whether the accused was informed of his right to be searched before a Gazetted Officer or Magistrate in a language understood by him. The prosecution failed to prove such communication, leading to breach of mandatory provision. Held that non-compliance with Section 50 vitiates the conviction (Paras 5-10).
Issue of Consideration
Whether the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were complied with, and if non-compliance is fatal to the prosecution case.
Final Decision
The appeal is allowed. The impugned judgment and order dated 26.10.2015 convicting the appellant is set aside. The appellant is acquitted of the charges. The appellant shall be set at liberty forthwith unless required in any other case.
Law Points
- Section 50 of NDPS Act is mandatory
- non-compliance vitiates conviction
- right to be informed of search before Gazetted Officer or Magistrate
- language of communication must be understood by accused
Case Details
2020 LawText (BOM) (09) 50
Criminal Appeal 18 of 2016
Ms. Dolorosa Tulkar (for appellant), Mr. Mahesh Amonkar (Additional Public Prosecutor for respondents)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal appeal against conviction under NDPS Act for possession of commercial quantity of charas.
Remedy Sought
Appellant sought acquittal by challenging the conviction and sentence on grounds of non-compliance with Section 50 of NDPS Act.
Filing Reason
Appellant was convicted and sentenced to ten years rigorous imprisonment and fine for possession of 3.015 kgs of charas.
Previous Decisions
The NDPS Court at Mapusa in Special Criminal Case No.06 of 2013 convicted the appellant on 26.10.2015.
Issues
Whether the mandatory provisions of Section 50 of the NDPS Act were complied with in the search and seizure?
Whether non-compliance with Section 50 is fatal to the prosecution case?
Submissions/Arguments
Appellant's counsel argued that there was breach of Section 50 as accused was not searched before a Gazetted Officer or Magistrate and was not informed of his right in Hindi.
Respondent's counsel argued that the conviction was based on evidence and Section 50 compliance was not necessary.
Ratio Decidendi
The mandatory requirement under Section 50 of the NDPS Act to inform the accused of his right to be searched before a Gazetted Officer or Magistrate was not complied with. The prosecution failed to prove that the accused was apprised of this right in a language understood by him. Such non-compliance vitiates the conviction.
Judgment Excerpts
Heard Ms. Dolorosa Tulkar, learned Counsel for the appellant and Mr. Mahesh Amonkar, learned Additional Public Prosecutor for the State.
This appeal is directed against the judgment and order dated 26.10.2015 made by the NDPS Court at Mapusa in Special Criminal Case No.06 of 2013 convicting the appellant (accused) for offences under Section 8(c), read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Ms. Tulkar, at the outset submitted that there is breach of the mandatory provisions of Section 50 of the NDPS Act since, in this case the accused was admittedly not searched before a Gazetted Officer or a Magistrate.
Procedural History
The appellant was convicted by the NDPS Court at Mapusa on 26.10.2015 in Special Criminal Case No.06 of 2013. He appealed to the High Court of Bombay at Goa, which reserved judgment on 17.09.2020 and pronounced on 19.09.2020.
Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985: Section 8(c), Section 20(b)(ii)(C), Section 50
- Code of Criminal Procedure, 1973: Section 313
